State v. Johnson, Terence

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0228-14

THE STATE OF TEXAS

v.

TERENCE JOHNSON, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TWELFTH COURT OF APPEALS

HOUSTON COUNTY

K ELLER, P.J., delivered the opinion of the Court in which J OHNSON,

K EASLER, H ERVEY, A LCALA, and R ICHARDSON, JJ., JOINED. A LCALA, J., filed a

concurring opinion. M EYERS, J., filed a dissenting opinion. Y EARY, J., filed a dissenting

opinion. N EWELL, J., dissents.

Twenty-six years ago, the United States Supreme Court held that the prosecution of Gregory

Lee Johnson under the Texas flag-desecration statute for burning an American flag violated the First

Amendment.1 Texas has since revised and renamed the statute, which now provides in part:

A person commits an offense if the person intentionally or knowingly damages,

1

Texas v. Johnson, 491 U.S. 397 (1989).

JOHNSON — 2

defaces, mutilates, or burns the flag of the United States or the State of Texas.2

We hold that the statute is invalid on its face because it is unconstitutionally overbroad in violation

of the First Amendment.

I. BACKGROUND

A. The Incident

Video-camera surveillance showed two men and one woman walking on a covered sidewalk

next to a building. One man jumped towards a hanging United States flag. Then the second

man—appellee—reached and jumped for the flag and caused the flag and its staff to come off its

post into his hand. Appellee then threw the flag and its staff into the street. At almost the same time

that appellee threw the flag into the street, the other man knocked over flower pots along the

sidewalk. Upon approaching the surveillance camera, appellee made various hand gestures and

walked out of view.

In a recorded interview that occurred later, appellee explained that he threw the flag because

he was “mad.” He claimed that he was upset because of racial remarks made about his mother by

a local merchant.

B. Trial Proceedings

As a result of this incident, appellee was charged by information with violating the Texas

flag-destruction statute, Texas Penal Code § 42.11. The information alleged that, on or about April

29, 2012, appellee did “[i]ntentionally or knowingly damage, deface, or mutilate a flag of the United

States by throwing the flag onto the ground/roadway of Highway 19.” The information further

alleged that this act was not done in conformity with statutes relating to the proper disposal of

2

TEX . PENAL CODE § 42.11(a).

JOHNSON — 3

damaged flags.

Appellee filed a motion to dismiss the information. At the hearing on the motion to dismiss,

the parties presented argument on the constitutionality of the flag-destruction statute, and the State

introduced the surveillance video and the recording of appellee’s interview.

The trial judge ultimately granted the motion to dismiss. In her order, the trial judge

observed that appellee could have been charged with criminal mischief under Texas Penal Code §

28.03, but, because his actions involved the United States flag, officers charged him under § 42.11.

Citing Texas v. Johnson3 and United States v. Eichman,4 the trial judge concluded, “[S]tatutes which

criminalize behavior because it specifically prohibits acts against the flag of the United States have

consistently been found to be unconstitutional due to the restriction on the Constitutional rights to

free speech and expression.” Although Texas amended its statute after the United States Supreme

Court handed down Texas v. Johnson, the trial judge concluded that the current statute contains

language similar to the federal statute in Eichman, in which the Supreme Court found a First

Amendment violation. The trial judge also rejected the State’s argument that the defendant’s actions

were not speech. “If an action such as burning the flag is protected speech,” the trial judge

explained, “the action of throwing a flag to the ground can also be protect[ed] speech. Non-verbal

action is expressive, [and] the government may not prohibit expression simply because it disagrees

with the message or the way it is expressed.” While the trial judge found the mistreatment of the

United States Flag to be “personally appalling,” she concluded that she was “bound to follow the

rulings of higher courts.”

3

See supra n.1.

4

496 U.S. 310 (1990).

JOHNSON — 4

C. Appeal

The State appealed. It contended that the statute was constitutional both on its face and as

applied to appellee. With respect to appellee’s facial challenge, the State contended that appellee

had the burden to establish the statute’s unconstitutionality and failed to meet that burden. The State

contended that appellee had “not presented any evidence, cases, or arguments establishing [the

statute’s] unconstitutionality, with the exception of cases that never reached the issue of whether the

statute in question was unconstitutional on its face.” With respect to appellee’s as-applied challenge,

the State contended that appellee’s conduct was not expressive because anyone observing his actions

would believe merely that he was vandalizing the hardware store that displayed the flag and because

nothing suggested that appellee was communicating any message at all. Part of the reason the State

believed appellee’s conduct was not expressive was that he told the police that he was angry at a

merchant from a different store from the one whose flag he vandalized.

The court of appeals rejected appellee’s claim that the flag-destruction statute was

unconstitutional as applied. It concluded that appellee’s conduct was not sufficiently imbued with

elements of communication so as to implicate the First Amendment.5 But the court of appeals found

that § 42.11 was unconstitutional on its face because it was overbroad in violation of the First

Amendment.6 In arriving at its holding, the court researched cases in Texas and other jurisdictions

that were handed down after Texas v. Johnson and United States v. Eichman, and the court “found

5

State v. Johnson, 425 S.W.3d 542, 549 (Tex. App.–Tyler 2014). Judge Yeary’s dissent

says that the “statute most certainly was applied constitutionally under the circumstances presented

here.” For reasons discussed later, we do not think that conclusion is self-evident. But appellee did

not file a cross-petition complaining about the court of appeals’s disposition of his as-applied

challenge, so we have no occasion to resolve that claim.

6

Id. at 550-54.

JOHNSON — 5

no case in which an individual was prosecuted under a flag desecration statute that was determined

to be both constitutional on its face and as applied.”7 The court of appeals acknowledged that the

lack of authority relating to the prosecution of individuals for flag desecration arguably shows a

pattern of non-enforcement, but the court concluded that the statute was “not sufficiently narrow to

prevent a chilling effect on the exercise of First Amendment freedoms” and that the court was “not

permitted to uphold an unconstitutional statute, even if there are promises to use it responsibly.”8

II. ANALYSIS

A. The Overbreadth Doctrine

The First Amendment protects, among other things, the freedom of speech.9 The First

Amendment right to freedom of speech applies to the states by virtue of the Fourteenth

Amendment.10

With respect to constitutional provisions other than the First Amendment, a facial challenge

to the constitutionality of a statute can succeed only when it is shown that the statute is

unconstitutional in all of its applications.11 And usually, a defendant does not have standing to

7

Id. at 551-52.

8

Id. at 553.

9

U.S. CONST . amend. I (“Congress shall make no law . . . abridging the freedom of

speech.”).

10

West Virginia Board of Education v. Barnette, 319 U.S. 624, 638-39 (1943).

11

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 & n.6

(2008); State v. Rosseau, 396 S.W.3d 550, 557-58 (Tex. Crim. App. 2013). See also United States

v. Stevens, 559 U.S. 460, 472-73 (2010).

JOHNSON — 6

challenge a statute on the ground that it may be unconstitutionally applied to the conduct of others.12

But under the First Amendment’s “overbreadth” doctrine, a law may be declared unconstitutional

on its face, even if it may have some legitimate application and even if the parties before the court

were not engaged in activity protected by the First Amendment.13 “Ordinarily, the principal

advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute’s

unlawful application to someone else.”14

The overbreadth doctrine is “strong medicine” that is used “sparingly and only as a last

resort.15 The overbreadth of a statute must be “substantial, not only in an absolute sense, but also

12

County Court of Ulster, N.Y. v. Allen, 442 U.S. 140, 155 (1979); Broadrick v. Oklahoma,

413 U.S. 601, 610 (1973). This general rule of standing is not the same as the jurisdictional “injury-

in-fact” standing requirement of Article III of the United States Constitution. The injury-in-fact

requirement entails a showing that a party has a personal stake in the outcome of the controversy by

requiring that the party’s interest be “concrete and particularized” and “actual or imminent” rather

than conjectural or hypothetical. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014).

A prosecution under an allegedly unconstitutional law—like in this case—clearly satisfies that

requirement because appellant has been arrested and prosecuted. Id. at 2342 (observing that “an

actual arrest, prosecution, or other enforcement action” is not required to establish injury in fact so

long as the threat of such is sufficiently imminent); Secretary of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 954-55 (1984) (threat of prosecution was sufficient to establish injury in fact). The

principle that parties may not assert the unconstitutionality of a law as to others is a prudential

standing requirement. Munson, 467 U.S. at 955 (“In addition to the limitations on standing imposed

by Art. III’s case-or-controversy requirement, there are prudential considerations that limit the

challenges courts are willing to hear” including that the party “must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”). The

jurisdictional injury-in-fact requirement has no exceptions in federal court, but prudential standing

requirements have been relaxed “where competing considerations outweigh any prudential rationale

against third-party standing” such as in First Amendment overbreadth claims. Id. at 956-58.

13

Stevens, 559 U.S. at 473; Sabri v. United States, 541 U.S. 600, 609-10 (2004).

14

Board of Trustees v. Fox, 492 U.S. 469, 483 (1989) (emphasis in original).

15

New York State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Broadrick, 413

U.S. at 613. See also Ex parte Thompson, 442 S.W.3d 325, 349 (Tex. Crim. App. 2014).

JOHNSON — 7

relative to the statute’s plainly legitimate sweep.”16 The statute must prohibit a substantial amount

of protected expression,17 and the danger that the statute will be unconstitutionally applied must be

realistic18 and not based on “fanciful hypotheticals.”19 The person challenging the statute must

demonstrate from its text and from actual fact “that a substantial number of instances exist in which

the Law cannot be applied constitutionally.”20 The Supreme Court “generally do[es] not apply the

‘strong medicine’ of overbreadth analysis where the parties fail to describe the instances of arguable

overbreadth of the contested law.”21 Moreover, the overbreadth doctrine is concerned with

preventing the chilling of protected speech and that concern “attenuates as the otherwise unprotected

behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct.”22 “Rarely,

if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically

addressed to speech or to conduct that is necessarily associated with speech (such as picketing or

demonstrating).”23

Judge Yeary’s dissenting opinion suggests that, as a matter of state law, we might be free to

refuse to entertain overbreadth claims. We do not agree. The dissent relies upon the United States

16

United States v. Williams, 553 U.S. 285, 292 (2008).

17

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); Thompson, 442 S.W.3d at

349-50.

18

Regan v. Time, 468 U.S. 641, 651 n.8 (1984); Thompson, 442 S.W.3d at 350.

19

Stevens, 559 U.S. at 485.

20

New York State Club Ass’n, 487 U.S. at 14.

21

Washington State Grange, 552 U.S. at 449-50 n.6.

22

Virginia v. Hicks, 539 U.S. 113, 124 (2003).

23

Id.

JOHNSON — 8

Supreme Court case of Virginia v. Hicks24 and the Utah Supreme Court case of Provo City Corp. v.

Willden.25 But Hicks itself recognized that whether the claimed overbreadth is substantial enough

to result in facial invalidity involves “not standing, but ‘the determination of [a] First Amendment

challenge on the merits.’”26 And in Secretary of Maryland v. Joseph H. Munson Co., the United

States Supreme Court made it clear that the overbreadth doctrine is in fact a part of substantive First

Amendment law:

[T]he Secretary urges that Munson should not have standing to challenge the statute

as overbroad because it has not demonstrated that the statute’s overbreadth is

“substantial.” The Secretary raises a point of valid concern. . . . The Secretary’s

concern, however, is one that is more properly reserved for the determination of

Munson’s First Amendment challenge on the merits. The requirement that a statute

be “substantially overbroad” before it will be struck down on its face is a “standing”

question only to the extent that if the plaintiff does not prevail on the merits of its

facial challenge and cannot demonstrate that, as applied to it, the statute is

unconstitutional, it has no “standing” to allege that, as applied to others, the statute

might be unconstitutional.27

Moreover, New York v. Ferber contains what appears to be an explicit statement that state courts are

bound to apply the First Amendment overbreadth doctrine: “A state court is not free to avoid a

proper facial attack on federal constitutional grounds. . . . By the same token, it should not be

compelled to entertain an overbreadth attack when not required to do so by the Constitution.” 28

24

539 U.S. 113 (2003).

25

768 P.2d 455 (Utah 1989).

26

539 U.S. at 120 (quoting Munson, bracketed material in Hicks).

27

467 U.S. at 958-59 (citations omitted). See also Sabri, 541 U.S. at 610 (citing

“Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of

substantive First Amendment law)”).

28

458 U.S. 747, 767 (1982) (citing Bigelow v. Virginia, 421 U.S. 809, 817 (1975)).

JOHNSON — 9

The dissent relies on the following passage in Hicks for the proposition that states may adopt

their own standing requirements for overbreadth challenges: “Whether Virginia’s courts should have

entertained this overbreadth challenge is entirely a matter of state law.”29 But these comments

appear to relate to the issue of whether a state is bound to apply the narrow standing requirements

that exist in federal court, or whether a state may instead have less stringent standing requirements.

The Supreme Court explained that “the problem” with the Commonwealth’s proposal was that the

Court was reviewing the decision of a state supreme court and state courts are not bound “by the

limitations” of a case or controversy or other federal rules of justiciability even when they address

issues of federal law.30 The cited comments, therefore, seem to be a recognition of the unexceptional

proposition that states can provide defendants more protection than federal law provides.31

The dissent also relies on a passage from Willden32 that appears, on its face, to support the

dissent’s position. But in that case, the Utah Supreme Court also seems to suggest that a state’s

leeway with respect to standing involved whether the state could have less stringent standing

requirements than those in federal court.33 Regardless of the ambiguity, the Supreme Court of Utah

29

539 U.S. at 120 (emphasis in original).

30

Id.

31

See Florida v. Powell, 559 U.S. 50, 59 (2010).

32

768 P.2d at 455-56 (“[T]he federal rules on standing . . . are not binding on state courts,

and the article III constitutional restrictions and federalistic prudential considerations that have

guided the evolution of federal court standing law are not necessarily relevant to the development

of the standing rules that apply to Utah’s state courts.”)

33

See id. at 456-57 (remarking on the “rather narrow standing doctrines developed by the

federal courts” and quoting the Supreme Court’s recognition in New York State Club Ass’n, 487 U.S.

at 8 n.2, that state courts may “issue advisory opinions or . . . determine matters that would not

satisfy the more stringent requirement in the federal courts that an actual ‘case’ or ‘controversy’ be

JOHNSON — 10

ultimately applied the overbreadth doctrine and found the statute before it to be facially

unconstitutional.34

In Jaynes v. Commonwealth, the Supreme Court of Virginia addressed and rejected the exact

argument made in Judge Yeary’s dissent.35 The Virginia court remarked that, on its face and without

context, the cited passage from Hicks “appears to support the rule of standing advocated by the

Commonwealth. In a nutshell, that rule would be that state courts are not required to apply the same

standing requirements to a claimant who raises a First Amendment overbreadth challenge to a state

statute in a state court as would be accorded a claimant in a federal court considering a similar First

Amendment overbreadth claim.”36 “However,” the court responded, “when viewed in the context

of the standing issue actually presented in [Hicks], and the longstanding Fourteenth Amendment

jurisprudence by which First Amendment rights are made applicable in state court proceedings, we

disagree with the Commonwealth’s arguments.”37 Virginia’s high court noted this colloquy, which

took place in the Hicks case during oral argument before the United States Supreme Court:

QUESTION: The issue is whether - whether [Virginia] adopted a broader

interpretation under State law than Federal law would require.

[ANSWER]: That is correct. A - a State may well be able to adopt a broader

interpretation of standing than this Court requires, but it cannot adopt a narrower

interpretation. It cannot disregard this Court’s direction that you give overbreadth

standing according to the Federal constitutional standards. . . .

presented for resolution”).

34

Willden, 768 P.2d at 455, 458-59.

35

276 Va. 443, 454, 666 S.E.2d 303, 308 (2008).

36

Id. at 455, 666 S.E.2d at 309.

37

Id.

JOHNSON — 11

QUESTION: And if they were correct about what our standing rules are, they would

have to follow those standing rules, wouldn’t they? They could not apply a narrower

. . . basis for standing, could they?

[ANSWER]: That is absolutely correct, Your Honor. The State supreme court has

no discretion to disregard this Court’s application of the First Amendment through

its overbreadth doctrine.38

The Supreme Court of Virginia further observed that the overbreadth doctrine is a matter of

substantive First Amendment law, and as such, it is “a constitutional exception to state and federal

rules of standing that would otherwise limit a party to an as applied challenge to a statute.”39 That

court also discussed the facts and procedural posture of Hicks, and it concluded that it was clear that

in Hicks the Supreme Court addressed the issue of First Amendment standing “only in the context

by which that issue was placed before the Court: whether a state’s expansion of First Amendment

standing was subject to review by federal courts.”40 Analyzing the passage in Hicks where the

Supreme Court stated “[w]hether Virginia’s courts should have entertained this overbreadth

challenge is entirely a matter of state law,” the Jaynes court found that “the term ‘this’ plainly limits

the standing issue to what was before the Court in that case: an expansion, not a restriction, of state

court standing.”41 We agree.

Moreover, it is difficult to understand how the overbreadth doctrine could ever be applied

by any court to invalidate a state law in its entirety if the doctrine is not itself a federal constitutional

38

Id. at 456-57, 666 S.E.2d at 310 (quoting Oral Arg. Tr., Virginia v. Hicks, No. 02-371, at

5 (Apr. 30, 2003)) (bracketed material and emphasis in Jaynes).

39

Id. at 458, 666 S.E.2d at 310-11.

40

Id. at 457, 666 S.E.2d at 310 (emphasis in Jaynes).

41

Id.

JOHNSON — 12

doctrine that the state courts have to follow.42 This status of overbreadth as a substantive

constitutional doctrine is similar in that respect to Fourth Amendment expectation-of-privacy issues,

which can be characterized as involving “standing,” but are more accurately viewed as part of

substantive Fourth Amendment law.43 No one would claim, for example, that a state court can

decline to entertain the Fourth Amendment claims of an overnight guest on the ground that overnight

guests simply do not have standing in state court under state law.44

Judge Yeary’s dissent attempts to draw a distinction between the substantive rule of

overbreadth and a procedural rule of overbreadth that accords liberalized standing. He claims that

he would not change the substantive rule but would merely restrict which litigants could successfully

bring a First Amendment overbreadth claim in state court. But we are not confronted with the

question of whether a claim confers standing sufficient to allow the individual to appear in court.

42

See Dickerson v. United States, 530 U.S. 428, 438 (2000) (holding that “first and foremost

of the factors” supporting the conclusion that “Miranda is a constitutional decision” is that the case

applied the rule to “prosecutions arising in state courts”); NAACP v. Button, 371 U.S. 415, 432-33

(1961) (recognizing the application of overbreadth doctrine to state laws and explaining that,

“[b]ecause First Amendment freedoms need breathing space to survive, government may regulate

in the area only with narrow specificity”).

43

See Rakas v. Illinois, 439 U.S. 128, 139-40 (1978) (citations omitted) (reaffirming general

standing principles but stating that “this Court’s long history of insistence that Fourth Amendment

rights are personal in nature has already answered many of these traditional standing inquiries, and

we think that definition of those rights is more properly placed within the purview of substantive

Fourth Amendment law than within that of standing”) (citations omitted); State v. Klima, 934

S.W.2d 109, 110 (Tex. Crim. App. 1996) (recognizing that “the application of Fourth Amendment

rights are personal in nature and are invariably intertwined with the concept of standing”).

44

See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). See also Jaynes, 276 Va. at 458, 666

S.E.2d at 311 (The Commonwealth’s view “is an untenable position because the right to assert the

protection of the First Amendment (by overbreadth or otherwise) can no more be restricted by a state

rule of standing than the exclusionary rule applied to impermissible searches and seizures could be

limited by state evidence law.”).

JOHNSON — 13

This is not a civil lawsuit filed by a person seeking to invoke a court’s jurisdiction on a First

Amendment claim.45 This case—a criminal prosecution—is the State’s action. The State has already

invoked the jurisdiction of the courts, with the flag-destruction statute being the basis for that

invocation. As a result, the trial court had authority to decide the case, and authority to review that

decision on appeal was conferred by Chapter 44 of the Code of Criminal Procedure.46 Appellee has

simply defended against the State’s action by substantively challenging the facial constitutionality

of the flag-destruction statute. The trial court agreed and dismissed the information, and it is the

State that now seeks the intervention of this Court to overturn the trial court’s substantive legal

decision. If accepting the overbreadth doctrine as a matter of substantive federal constitutional law

means anything, it means, at the least, that a criminal defendant can defend himself in a criminal

prosecution by challenging the constitutionality of the statute defining the crime with which he is

charged. The dissent says that this violates the Separation of Powers clause of the Texas

45

Nor is the present case even a habeas action, which might at least arguably be said to

affirmatively invoke a court’s jurisdiction, although it might also be characterized as a vehicle for

challenging the State’s criminal action, especially when invoked at the pretrial stage. See Ex parte

Rieck, 144 S.W.3d 510, 515 (Tex. Crim. App. 2004) (discussing differing ways of characterizing the

nature of habeas proceedings).

46

See TEX . CODE CRIM . PROC. arts. 44.01, 44.02. The Supreme Court has recognized that

the posture of the case before the court—how the action came before it and which party is

complaining—can affect the existence of standing. See Hicks, 539 U.S. at 120-21 (“Because it is

the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by

petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question

is clear . . . . The Commonwealth has suffered, as a consequence of the Virginia Supreme Court's

‘final judgment altering tangible legal rights,’ . . . an actual injury in fact—inability to prosecute

Hicks for trespass—that is sufficiently ‘distinct and palpable’ to confer standing under Article III .

. . . We accordingly proceed to that merits inquiry, leaving for another day the question whether our

ordinary rule that a litigant may not rest a claim to relief on the legal rights or interests of third

parties . . . would exclude a case such as this from initiation in federal court.”) (emphasis added).

JOHNSON — 14

Constitution,47 but “[t]he power to determine the validity of an Act of the legislature rests with the

Courts.”48

The dissent also contends that allowing an overbreadth claim by a person who cannot show

that the statute is unconstitutional as to him invites us to assume the power to issue advisory opinions

and that we are without power to do that. The United States Supreme Court, which recognizes

overbreadth claims, is also—under Article III of the United States Constitution—without power to

render advisory opinions.49 By holding that overbreadth is an exception to a prudential rule of

standing, rather than to jurisdictional standing under Article III,50 the Supreme Court has effectively

held that the overbreadth doctrine does not give rise to advisory opinions.51 Even if we could depart

from Supreme Court precedent in deciding whether to recognize overbreadth claims, we do not see

any reason to construe “advisory opinions” to mean something different under state law than it does

in the Supreme Court’s jurisprudence. There is nothing advisory or hypothetical about the

consequence of a criminal defendant prevailing on an overbreadth challenge to the statute that

47

See TEX . CONST . art. II, § 1.

48

Ex parte Halsted, 147 Tex. Crim. 453, 457, 182 S.W.2d 479, 482 (1944).

49

See Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 516 (2007) (No

justiciable controversy exists under Article III of the United States Constitution when the parties ask

for an advisory opinion.).

50

See supra n. 12.

51

See also Federal Election Commission v. Akins, 524 U.S. 11, 24 (1998) (indicating the

injury-in-fact requirement of Article III prevents advisory opinions); Savage v. Gee, 665 F.3d 732,

740 (6th Cir. 2012) (holding that overbreadth claimant must still show that enforcement of the

challenged statute against him is actual or imminent and quoting Prime Media v. City of Brentwood,

485 F.3d 343, 350 (6th Cir. 2007): “Because overbreadth creates an exception only to the prudential

standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies

to overbreadth claims under the First Amendment.”).

JOHNSON — 15

defines the charged offense—the case against him is dismissed.

B. The State’s Arguments

The State contends that appellee has failed to meet his burden to show that the flag-

destruction statute is substantially overbroad by its text and has a substantial number of

unconstitutional applications in actual fact. With respect to the text, the State contends that the

statute is a legitimate content-neutral law because it does not expressly restrict speech and because

it punishes any kind of damage or destruction to a United States or Texas flag, regardless of the

actor’s motive. The State further contends that the amount of protected speech covered by § 42.11

is “minimal when compared to the non-expressive conduct lawfully prohibited” and that any risk of

a chilling effect is “dwarfed by the number of lawful applications” of the statute.52

With respect to whether the statute has a substantial number of unconstitutional applications

in actual fact, the State contends that appellee has failed to “provide examples of actual people who

have been deterred from engaging in protected speech or conduct.” The State further contends that

the court of appeals conceded that the absence of evidence of prosecution under this statute arguably

shows a pattern of non-enforcement.53 The State argues that the statute produces no chilling effect

because “the average citizen generally understands that burning a flag as part of expressive speech

or conduct is protected by the United States Constitution.”54

The State also contends that appellee’s conduct was not protected by the First Amendment

52

At oral argument, the State claimed that “almost all” of the conduct the statute covers is

outside the First Amendment’s protection.

53

See Johnson, 425 S.W.3d at 553.

54

State’s brief quoting id. at 552 (quoting Roe v. Milligan, 479 F. Supp. 2d 995, 1007 (S.D.

Iowa 2007)).

JOHNSON — 16

because it was not expressive:

Appellee’s conduct instead constituted an act of criminal mischief with no intent to

convey any particularized message. Indeed, according to appellee, he did not even

expect the flag to come off its staff and into his hand when he jumped and reached

for it. Appellee attempted to explain his conduct by claiming he was mad [at] a local

merchant. However, in no way did his actions relay that he was angry with a local

merchant. In fact, the flag that he threw onto the highway was in front of a different

store than the one appellee claimed to be angry with. Further, there was no element

of speech in his conduct. The very way appellee committed his crime was random

in nature.55

During oral argument, the State suggested that the flag-destruction statute was “really just

criminal mischief in relation to the flag.” The State argued that a punishment provision with respect

to conduct directed against the flag—similar to current provisions that enhance punishment for

damage to churches and public monuments—could have been included in the criminal-mischief

statute.56 If the flag-destruction statute sweeps too broadly by punishing someone who damages his

own flag, the State further argued, the statute could be narrowly construed to apply only to situations

in which the conduct would actually constitute criminal mischief, i.e. damage to someone else’s

property.57

C. The Statute

1. The Text

“The first step in overbreadth analysis is to construe the challenged statute; it is impossible

55

Citations omitted, some capitalization changed.

56

See TEX . PENAL CODE § 28.03(f) (state-jail felony punishment if criminal mischief

involves “place of worship or human burial, a public monument, or a community center that provides

medical, social, or educational programs”).

57

See id. § 28.03.

JOHNSON — 17

to determine whether a statute reaches too far without first knowing what the statute covers.”58 The

Texas flag-destruction statute provides:

(a) A person commits an offense if the person intentionally or knowingly damages,

defaces, mutilates, or burns the flag of the United States or the State of Texas.

(b) In this section, “flag” means an emblem, banner, or other standard or a copy of

an emblem, standard, or banner that is an official or commonly recognized depiction

of the flag of the United States or of this state and is capable of being flown from a

staff of any character or size. The term does not include a representation of a flag on

a written or printed document, a periodical, stationery, a painting or photograph, or

an article of clothing or jewelry.

(c) It is an exception to the application of this section that the act that would

otherwise constitute an offense is done in conformity with statutes of the United

States or of this state relating to the proper disposal of damaged flags.59

Unlike its predecessor,60 the current statute narrowly defines what is meant by a “flag,” and it

excludes certain depictions of a flag from its reach. For example, the current statute avoids past

controversies regarding the representation of a flag on clothing by explicitly providing that such does

not count as a flag.61 The current statute also differs from its predecessor in that it does not require

that the actor be aware of the likely impact of his conduct on others.62

58

Williams, 553 U.S. at 293.

59

TEX . PENAL CODE § 42.11(a)-(c). The statute also provides that the offense is a Class A

misdemeanor. Id. § 42.11(d).

60

See TEX . PENAL CODE § 42.09(a)(3) (West 1988) (“A person commits an offense if he

intentionally or knowingly desecrates . . . a state or national flag.”)

61

See Smith v. Goguen, 415 U.S. 566 (1974) (United States flag sewn to the seat of

defendant’s trousers); Delorme v. State, 488 S.W.2d 808 (Tex. Crim. App. 1973) (same).

62

See TEX . PENAL CODE § 42.09(b) (West 1988) (“For purposes of this section, ‘desecrate’

means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously

offend one or more persons likely to observe or discover his action.”) (emphasis added).

JOHNSON — 18

The current Texas statute also circumscribes the type of conduct toward a flag that is

proscribed. The statute prohibits only physical mistreatment that alters or damages a flag. The

statute does not apply to words spoken that are critical of the United States or Texas flag,63 nor does

the statute apply to physical acts that do not alter or damage a flag.64

2. Narrowing Construction?

The federal constitution affords the states broad authority to construe a statute narrowly to

avoid a constitutional violation.65 At the outset, we will assume that the flag-destruction statute

applies only to acts that physically damage a flag.66

The State argues that the statute may be construed to apply only to conduct that would

otherwise constitute criminal mischief, that is, conduct that damages someone else’s flag (without

consent).67 We decline to impose such a narrowing construction because nothing in the language of

the statute supports it. On the contrary, the text of the statute is unambiguously broad in this respect,

applying to the conduct of intentionally or knowingly damaging any United States or Texas flag,

regardless of who owns the flag and whether that owner has consented to the conduct.

63

See Street v. New York, 394 U.S. 576 (1969) (holding unconstitutional, as applied, a statute

that punished words that cast contempt on the flag of the United States).

64

See People v. Meyers, 23 Ill. App. 3d 1044, 1045, 321 N.E.2d 142, 143 (5th Dist. 1974)

(defendant seen lying on American flag in a public park).

65

Osborne v. Ohio, 495 U.S. 103, 115 n.12, 119-21 (1990); Thompson, 442 S.W.3d at 339.

66

Although the current statute makes it an offense to, among other things, “deface” a flag,

we will assume that the term “deface” can be narrowly construed to not apply to temporary

attachments to a flag. See Spence v. Washington, 418 U.S. 405 (1974) (involving a peace symbol

made of removable black tape attached to a United States flag).

67

See TEX . PENAL CODE § 28.03(a).

JOHNSON — 19

Although a Texas court has a duty to employ, if possible, a reasonable narrowing

construction to avoid a constitutional violation, such a construction should be employed only if the

statute is readily susceptible to one.68 “We may not rewrite a statute that is not readily subject to a

narrowing construction because such a rewriting constitutes a serious invasion of the legislative

domain and would sharply diminish the legislature’s incentive to draft a narrowly tailored statute in

the first place.”69 A law is not readily subject to a narrowing construction if its meaning is

unambiguous.70 We should be wary of reading into a statute a narrow meaning not supported by its

language because such a construction may later be rejected as untenable.71 Moreover, when the

statute is unambiguous, the public at large will not necessarily be on notice that the law means

something other than exactly what it says. Instead, we should act in accordance with our usual rules

of statutory construction and construe a statute in accordance with unambiguous language absent a

finding of absurd results.72 Consequently, we construe the flag-destruction statute in accordance with

the text’s unambiguously broad command against intentionally or knowingly damaging any United

68

Thompson, 442 S.W.3d at 339; Long v. State, 931 S.W.2d 285, 295 (Tex. Crim. App.

1996). See also Stevens, 559 U.S. at 481.

69

Thompson, 442 S.W.3d at 339. See also Long, 931 S.W.2d at 295; Stevens, 559 U.S. at

481.

70

Thompson, 442 S.W.3d at 339; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App.

1991).

71

See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in

Scott, made in context of First Amendment challenge, that statutory term “repeated” could be

narrowly construed to apply only to activity occurring in close enough proximity to properly be

termed a single episode).

72

Thompson, 442 S.W.3d at 339-40. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).

JOHNSON — 20

States or Texas flag.73

D. Sweep of the Statute under its Text

1. Unconstitutional Applications

The Supreme Court has recognized that the conduct of intentionally or knowingly damaging

a United States flag is not inherently expressive.74 As a result, a statute that proscribes such conduct

will at least theoretically apply to some circumstances that do not implicate the First Amendment.

The question is whether the applications of such a statute that do implicate (and violate) the First

Amendment are so substantial that the statute must be held invalid on its face.

It is clear that the Texas flag-destruction statute violates the First Amendment when applied

to some circumstances. In Texas v. Johnson, the Supreme Court found that the former flag-

desecration statute was applied in violation of the First Amendment when the State punished a

person who burned a United States flag as part of a protest against the Reagan Administration.75 The

flag-desecration statute made it an offense to “intentionally or knowingly desecrate[] . . . a state or

national flag,” with “desecrate” being defined to mean to “deface, damage, or otherwise physically

73

See also Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158-59 (8th Cir. 2014)

(declining to limit Missouri flag-desecration statute to non-expressive conduct given the absence of

language to suggest such a limitation); State v. Janssen, 213 Wis. 2d 471, 480-82, 570 N.W.2d 746,

751 (Ct. App. 1997), aff’d, 219 Wis. 2d 362, 580 N.W.2d 260 (1998) (declining to limit Wisconsin

statute to non-expressive conduct in part because the statute’s “plain reading prohibits all intentional

and public acts of defiling, mutilating, and casting contempt on the flag; it does not distinguish

non-expressive conduct”).

74

Johnson, 491 U.S. at 403 n.3 (“A tired person might, for example, drag a flag through the

mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any

idea.”), 405 (“We have not automatically concluded, however, that any action taken with respect to

our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have

considered the context in which it occurred.”); Thompson, 442 S.W.3d at 334.

75

491 U.S. at 399, 418-20.

JOHNSON — 21

mistreat in a way that the actor knows will seriously offend one or more persons likely to observe

or discover his action.”76 The Court concluded that whether the defendant’s treatment of the flag

violated Texas law depended on “the likely communicative impact of his expressive conduct.”77 The

Court further concluded that such a restriction on expression was content based.78

The Court then considered the State’s asserted interest in “preserving the flag as a symbol

of nationhood and national unity.”79 This interest was found to be insufficient to justify a content-

based restriction because “[i]f there is a bedrock principle underlying the First Amendment, it is that

the government may not prohibit the expression of an idea simply because society finds the idea

itself offensive or disagreeable” and the Court has “not recognized an exception to this principle

even where our flag has been involved.”80 The State argued that, even if the flag’s symbolic role

does not allow the State to prohibit words or some expressive conduct critical of the flag, it does

allow the State “to forbid the outright destruction of the flag.”81 The Court rejected this distinction,

saying that it “is of no moment where the nonverbal conduct is expressive, as it is here, and where

the regulation of that conduct is related to expression, as it is here.”82 The State’s “focus on the

precise nature of” the defendant’s expression, “misse[d] the point” of the Court’s prior decisions:

76

See id. at 400 n.1 (quoting TEX . PENAL CODE § 42.09 (1989)).

77

Id. at 411.

78

Id. at 412.

79

Id. at 413.

80

Id. at 414.

81

Id. at 416.

82

Id.

JOHNSON — 22

“their enduring lesson, that the government may not prohibit expression simply because it disagrees

with its message, is not dependent on the particular mode in which one chooses to express an idea.”83

“If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s

symbolic role,” the Court continued, “but allow it wherever burning a flag promotes that role” then

“[w]e would be permitting a State to ‘prescribe what shall be orthodox’” in violation of the First

Amendment.84

Although the current flag-destruction statute differs somewhat from the flag-desecration

statute considered in Texas v. Johnson, it is similar to the statute considered in United States v.

Eichman. In Eichman, the federal flag-protection statute made it a crime if a person “knowingly

mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any

flag of the United States” unless the conduct consists of “the disposal of a flag when it has become

worn or soiled.”85 The Government relied heavily on the fact that, unlike the statute in Texas v.

Johnson, the federal statute did not require the actor to have any intent or knowledge with respect

to whether his actions would seriously offend onlookers.86 The Supreme Court was not persuaded

that this fact made any difference: “Although the Flag Protection Act contains no explicit content-

based limitation on the scope of the prohibited conduct, it is nevertheless clear that the Government’s

asserted interest is related to the suppression of free expression.”87 “The Government’s interest in

83

Id.

84

Id. at 416-17.

85

496 U.S. at 314.

86

Id. at 315.

87

Id. (internal quotation marks omitted).

JOHNSON — 23

protecting the physical integrity of a privately owned flag,” the Court explained, “rests upon a

perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals.”88

Each of the acts that were prohibited by the statute, with the possible exception of “burns,” connoted

a disrespectful treatment of the flag, and the explicit exception for the disposal of soiled flags

protected “certain acts traditionally associated with patriotic respect for the flag.”89 Consequently,

the statute was an impermissible content-based restriction of speech when applied to a person who

used the mistreatment of a flag as a method of expressing an idea.90

Though the flag-destruction statute before us is not limited solely to expressive conduct,

Eichman teaches that, when this type of statute does apply to expressive conduct, it is an

impermissible content-based restriction. As in Eichman, the present Texas statute contains an

exemption for conduct associated with the proper disposal of a flag. So, as in Eichman, the present

statute distinguishes between disrespectful and respectful conduct that damages a flag.91 And while

the Texas statute does not require that the disrespectful conduct be expressive, such conduct is very

likely to be expressive in a given case because of the symbolism associated with flags. Flags are

“[p]regnant with expressive content,” and the United States flag “readily signifies this Nation.”92

88

Id. at 315-16.

89

Id. at 317.

90

Id. at 317-19.

91

Judge Yeary’s dissenting opinion says that the legislature enacted the flag-destruction

statute in its current form after Texas v. Johnson in “an attempt to cure potential constitutional

problems with that law.” But the Supreme Court issued its opinion in Eichman after the current

statute was enacted, and it is Eichman, more than any other case, that guides our decision today.

92

Johnson, 491 U.S. at 405.

JOHNSON — 24

The statutory language clearly applies to those who damage a flag of the United States or Texas as

a means of communicating a message (e.g. of protest against the United States or Texas). The only

ascertainable purpose of a law as broadly worded as the present one—which applies even when the

actor damages his own flag—is to protect the integrity of the United States flag or Texas flag as a

symbol.93

2. Expressive Applications Predominate

The State contends that the number of lawful applications of the flag-destruction statute

dwarfs its unlawful applications, but, aside from the present case, the State does not attempt to

describe the lawful applications to which the statute theoretically applies. We are aware of two types

of situations suggested by the caselaw that might involve lawful applications to conduct that is non-

expressive, but the nature of both situations suggests that prosecutions for them will be uncommon,

which in turn suggests that the legitimate reach of the statute is narrow.

The first is conduct toward a flag that is hidden or secretive.94 The more hidden the conduct,

arguably the less expressive it is likely to be,95 but as conduct becomes more hidden, it also becomes

93

See Eichman, 496 U.S. at 315-16. The natural symbolism of the flags, the discrimination

between respectful and disrespectful treatment of the flags, and the fact that the obvious legislative

purpose is one that is directed at expression distinguishes the statute at issue here from the

disorderly-conduct provisions cited in Judge Yeary’s dissenting opinion. See above discussion of

Eichman. As will be seen below, the offense of flag destruction also differs from these offenses

because prosecutions for flag destruction have typically been directed at expressive activity.

94

See Carpenter v. State, 597 So. 2d 757, 758 (Ala. Crim. App. 1992) (soiled flag wadded

up in coat pocket).

95

But see Stanley v. Georgia, 394 U.S. 557 (1969) (First Amendment protects viewing

obscenity in the privacy of the home).

JOHNSON — 25

less likely to be discovered, and thus less likely to be prosecuted.96 If the conduct toward a flag is

completely hidden, it will likely be only by unusual happenstance that a prosecuting authority will

be alerted to the situation.97

The second type of situation involving potentially non-expressive conduct involves the

person who acts disrespectfully toward a flag with a casual or cavalier attitude but without intending

to communicate a message. The hypothetical described by the Supreme Court was that of “a tired

person” who might “drag a flag through the mud, knowing that his conduct is likely to offend others,

and yet have no thought of expressing any idea.”98 The Court offered this hypothetical merely as a

“possibility” that might be prosecuted under the former Texas statute that was analyzed in Texas v.

Johnson.99 We agree with other courts that this scenario is an unlikely one.100

Most conduct that falls within the provisions of the statute and that would come to the

96

See Wayte v. United States, 470 U.S. 598, 612-14 (1985) (discussing passive-enforcement

policy of prosecuting those who report their refusal to register for selective service or who are

reported and recognizing that Government can more easily prosecute those who openly and

obviously violate the law).

97

See Carpenter, 597 So. 2d at 758 (soiled flag wadded up in coat pocket discovered after

defendant was arrested for littering and desecrating a Post Office).

98

Johnson, 491 U.S. at 403 n.3.

99

Id. The Court declined to address the constitutionality of such a prosecution because it

could decide the case before it on narrower grounds. Id.

100

Snider, 752 F.3d at 1158 (calling it an “unlikely hypothetical” and holding the Missouri

flag-desecration statute unconstitutionally overbroad); Commonwealth v. Bricker, 542 Pa. 234, 246,

666 A.2d 257, 263 (1995) (citing footnote 3 of Johnson and stating, “We hold open the possibility

that there are narrow categories in which the flag is used in a non-expressive manner and, in this

regard, the United States Supreme Court agrees.”).

JOHNSON — 26

attention of the authorities would constitute protected expression.101 The assessment of Wisconsin’s

high court regarding its own flag-desecration statute seems to apply equally to the statute before us:

“Although there may be constitutionally permissible applications[,] . . . the number of instances in

which the law could be applied to unprotected behavior is small in comparison to the number of

instances in which it may be applied to expression protected by the First Amendment.”102

3. Criminal Mischief Not Relevant

The State argues that the flag-destruction statute essentially penalizes criminal mischief in

relation to the flag, but we disagree. Criminal mischief, as defined in Texas, occurs when a person

intentionally or knowingly damages, destroys, tampers with, or makes markings on property “without

the effective consent of the owner.”103 As we have already explained, the flag-destruction statute

applies even when someone damages his own flag.104

101

Judge Yeary’s dissenting opinion contends that this conclusion is not a proper

consideration in an overbreadth analysis because the doctrine “as it is currently enforced by the

Supreme Court, requires an examination of the statute itself, and not merely the potential or

hypothetical First Amendment uses” of the conduct proscribed by the statute. But, as the dissent

seems to concede, an examination of the statute and of the possible uses of the conduct proscribed

by the statute are not mutually exclusive inquiries. As we explained earlier, the overbreadth doctrine

contemplates a showing, from the text and from actual fact, “that a substantial number of instances

exist in which the Law cannot be applied constitutionally.” New York State Club Ass’n, 487 U.S.

at 14. Examining the probable First Amendment uses of conduct proscribed by the statute is a

necessary step in answering such an inquiry.

102

State v. Janssen, 219 Wis. 2d 362, 387, 580 N.W.2d 260, 270 (1998). Although the

Wisconsin statute was broader than the current Texas statute, the Supreme Court of Wisconsin found

it to be unconstitutionally overbroad even when narrowed to reach only conduct that defiled the flag

through purely physical acts. Id. at 382, 580 N.W.2d at 268.

103

TEX . PENAL CODE § 28.03(a).

104

It is indisputably true that a person who damages someone else’s flag without consent

could validly be punished under a general criminal mischief statute such as Penal Code § 28.03. See

Johnson, 491 U.S. at 412 n.8 (“[N]othing in our opinion should be taken to suggest that one is free

JOHNSON — 27

Furthermore, when considering the possible legitimate applications of the flag-destruction

statute, there are two reasons that we should not count cases that amount to criminal mischief: the

flag-destruction statute does not require the State to show that the person’s conduct toward a flag was

an act of criminal mischief,105 and nothing prevents the State from prosecuting a person under both

to steal a flag so long as one later uses it to communicate an idea.”). Some of the Supreme Court’s

cases arguably support a conclusion that the State could validly enhance punishment for someone

who commits criminal mischief on the basis that the property damaged was a United States flag

because damage to such property is an especially egregious form of criminal mischief, involving a

greater harm to the flag’s owner than its monetary value would indicate. See Virginia v. Black, 538

U.S. 343, 363 (2003) (“The First Amendment permits Virginia to outlaw cross burnings done with

the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of

intimidating messages in light of cross burning’s long and pernicious history as a signal of

impending violence.”); Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993) (Statute does not violate

First Amendment when it “singles out for enhancement bias-inspired [assaultive] conduct because

this conduct is thought to inflict greater individual and societal harm.”).

In any event, the Supreme Court has explicitly recognized the government’s power to protect

publicly owned flags. Eichman, 496 U.S. at 316 n.5 (“Today’s decision does not affect the extent

to which the Government’s interest in protecting publicly owned flags might justify special measures

on their behalf.”); Spence, 418 U.S. at 409 (“We have no doubt that the State or National

Governments constitutionally may forbid anyone from mishandling in any manner a flag that is

public property.”). It is primarily for this reason that we find Judge Meyers’s “mockingbird” analogy

unpersuasive. A mockingbird (like a bald eagle) is a wild animal that belongs to the public. It is a

finite natural resource, and a government may choose to protect it. See State v. Bartee, 894 S.W.2d

34, 41 (Tex. App.–San Antonio 1994, no pet.) (unanimous panel op. by John F. Onion, Jr.) (“History

reveals a long recognition of common ownership in game and wild animals and its developing

subjectivity to governmental authority.”). To the extent that a mockingbird or bald eagle can be

analogized to a flag at all, they would be analogous to a public flag. A statute that punished the

destruction of a depiction of a mockingbird or bald eagle might, however, raise First Amendment

concerns.

105

See Johnson, 491 U.S. at 412 n.8 (“There was no evidence that Johnson himself stole the

flag he burned . . . nor did the prosecution or the arguments in support of it depend on the theory that

the flag was stolen . . . . We also emphasize that Johnson was prosecuted only for flag

desecration—not for trespass, disorderly conduct, or arson.”).

JOHNSON — 28

the flag-destruction and criminal-mischief statutes.106 The criminal-mischief aspect of an actor’s

conduct is a red herring in a constitutional analysis of the flag-destruction statute: by allowing for

a separate prosecution and penalty in addition to that authorized for criminal mischief, the flag-

destruction statute enables the State to separately penalize the actor’s expression.107

However, even if we assumed that the flag-destruction statute could legitimately be applied

106

See Cullen v. State, 832 S.W.2d 788, 791-92 (Tex. App.–Austin 1992, pet. ref’d) (in

prosecution for the poisoning of the historic Treaty Oak in Austin, rejecting claim that the

desecration-of-venerated-object and criminal-mischief statutes must be read in pari materia to

require prosecution only under the former). Cullen addressed the predecessor to the current flag-

destruction statute, but its reasoning is equally applicable to the present statute. The flag-destruction

and criminal-mischief offenses are not the same under the Blockburger same-elements test, and other

factors do not suggest that the legislature intended the offenses proscribed by those statutes to be

treated as the same. See id. at 792 (“These two statutes are contained in different legislative acts,

address differing situations, require different elements of proof, and serve different objectives. We

believe the legislature intended to define two separate offenses with different elements and different

levels of punishment. It follows that section 42.09 is not a special subset of the general offense of

criminal mischief.”); Blockburger v. United States, 284 U.S. 299, 304 (1932) (“[W]here the same

act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is whether each provision requires proof

of a fact which the other does not.”); Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)

(“The Blockburger test is a useful tool for ascertaining legislative intent, but it is not the only tool.

Other . . . considerations [are] relevant to determining whether the Legislature intended multiple

punishments . . . .”).

We further note that the predecessor statute at issue in Cullen also penalized the desecration

of public monuments and places of worship or burial. See Cullen, 832 S.W.2d at 792; TEX . PENAL

CODE § 42.09 (West 1988). Those portions of the statute were later moved to the criminal mischief

statute to enhance the level of the offense. See TEX . PENAL CODE § 28.03(f) (current). The

legislature has not, however, codified a criminal-mischief enhancement based on destruction of the

flag. See TEX . PENAL CODE § 28.03, passim.

107

See R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992) (“The proposition that a particular

instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the

basis of another (e. g., opposition to the city government) is commonplace and has found application

in many contexts. We have long held, for example, that nonverbal expressive activity can be banned

because of the action it entails, but not because of the ideas it expresses—so that burning a flag in

violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in

violation of an ordinance against dishonoring the flag is not.”).

JOHNSON — 29

to conduct that amounted to criminal mischief (whether expressive or not), the statute would still

cover a wide swath of expressive conduct that does not amount to criminal mischief. Even under

that assumption, then, the unconstitutional applications of the statute would, by its text, be

substantial in relation to its plainly legitimate sweep.

E. Sweep of the Statute in Actual Fact

As for whether the application of the flag-destruction statute to expressive activity is

significant in actual fact, we need look only to the numerous prosecutions of flag desecration

involving physical alteration or damage to a flag that are documented by judicial decisions.108 By

108

See Snider, 752 F.3d at 1154-55 (plaintiff attempted to set fire to flag in his front yard,

then shredded it and threw it into the street; officer conceded he violated plaintiff’s First Amendment

rights); Janssen, 219 Wis. 2d at 367-68, 580 N.W.2d at 262 (defecating on a flag and leaving it on

the steps to a golf course clubhouse); Eichman, 496 U.S. at 312 (setting fire to several United States

flags on the steps of the United States Capitol while protesting various aspects of the Government’s

domestic and foreign policy); United States v. Cary, 897 F.2d 917, 919-21 (8th Cir.), vacated, 498

U.S. 916 (1990) (at protest of the decision of the United States Government to send 3,200 troops to

Honduras, an unidentified woman came up to defendant, handed him a flag, and told him to light it,

which he did); United States v. Haggerty, 731 F. Supp. 415, 416 (W.D. Wash.), aff’d sub nom.,

Eichman, 496 U.S. 310 (1990) (flag burned at a political demonstration in front of a post office to

protest the Flag Protection Act of 1989); Johnson, 491 U.S. at 399 (burning flag as part of protest

against Reagan administration); Bowles v. Jones, 758 F.2d 1479-80 (11th Cir. 1985) (burning flag

at Communist rally as a protest against U.S. imperialism); Monroe v. State Court of Fulton County,

739 F.2d 568, 570-71 (11th Cir. 1984) (flag burned at protest against U.S. involvement in Iranian

affairs); People v. Sutherland, 9 Ill. App. 3d 824, 826, 292 N.E.2d 746, 747 (1973) (flag burned to

protest against the invasion of Cambodia and the death of the four students at Kent State); State v.

Farrell, 209 N.W.2d 103, 104 (Iowa 1973) (flag burned at protest of the Indo-China War and the

presence of R.O.T.C. on the campus); United States v. Crosson, 462 F.2d 96, 98 (9th Cir. 1972) (flag

burned by war protestors in R.O.T.C. building); Joyce v. United States, 454 F.2d 971, 977-80 (D.C.

Cir. 1971) (flag torn by person in group of protestors at Inauguration Day Parade); Deeds v. State,

474 S.W.2d 718, 719-20 (Tex. Crim. App. 1971) (flag burned at crowded public park in Dallas);

People v. Burton, 27 N.Y.2d 198, 201, 265 N.E.2d 66, 66 (Ct. App. 1970) (After affixing a flag to

a vacant building and setting it on fire, the defendant said, “I am going to burn Johnson, Humphrey

and Wallace just as I am going to burn this flag.”); State v. Turner, 78 Wash. 2d 276, 277-78, 283-

84, 474 P.2d 91, 93, 96 (1970) (flag burned at gathering by organization having to do with the social

and economic rehabilitation of a large economically depressed area of Seattle); United States v.

Ferguson, 302 F. Supp. 1111, 1112 (N.D. Cal. 1969) (flag burned at rally on the front steps of a

JOHNSON — 30

contrast, prosecutions involving even arguably non-expressive conduct appear from the cases to be

uncommon as a historical matter.109 Even prosecutions that involve expressive activity that also

constitutes criminal mischief appear to be a small proportion of the cases.110 In fact, we are not

aware of a single case since Eichman that has resulted in a final conviction under a flag destruction

statute. Such prosecutions have been terminated in the defendant’s favor because the statute violated

the constitution in one way or another111 or, in one case, because the court declined to address the

constitutionality of the statute after finding the evidence insufficient to support the conviction.112

F. Pattern of Non-Enforcement

We turn now to the State’s contention that the Texas flag-destruction statute will not be

United States District Courthouse). See also State v. Jimenez, 828 S.W.2d 455 (Tex. App.–El Paso

1992) (not setting out the alleged conduct but ruling Texas flag-destruction statute unconstitutional).

109

See Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (troopers discovered

large debris trail—which included a United States flag—extending from defendant’s truck to a

wooded area, flag-desecration charge dismissed pretrial); Bricker, 542 Pa. at 237-38, 244, 666 A.2d

at 259, 262 (dirty and wrinkled flag being used at entrance to home as artistic decoration, holding

statute unconstitutional as applied because artistic expression is protected by the First Amendment);

Carpenter, 597 So. 2d at 758 (soiled flag wadded up in pocket, acquittal on appeal because

desecration was not in public); Meyers, 23 Ill. App. 3d at 1045, 321 N.E.2d at 143 (person lying on

flag in public park, acquittal on appeal because he did not “trample” the flag); Cincinnati v. Bunch,

32 Ohio App. 2d 161, 161-62, 288 N.E.2d 854, 855 (1971) (defendant “spread the flag out on the

ground and placed his personal property on top of it,” conviction for defiling the flag upheld). The

last two cases would not appear to be prosecutable under the current Texas statute, and it is not

entirely clear whether the first three cases could be.

110

See Janssen, 219 Wis. 2d at 367, 580 N.W.2d at 262 (flag stolen from a golf course);

Haggerty, 731 F. Supp. at 416 (burned flag belonging to the United Sates Postal Service).

111

See supra nn.108-10; infra n.119. The State cites Milligan, a federal district court

opinion, which found no First Amendment violation, but the opinion held that the statute was void

for vagueness in violation of the Fourteenth Amendment. 479 F. Supp. 2d at 1008-14.

112

Carpenter, 597 So. 2d at 758.

JOHNSON — 31

unconstitutionally applied in a significant number of instances because there is currently a pattern

of non-enforcement. Essentially, the State’s argument is that the Supreme Court’s opinions in Texas

v. Johnson and United States v. Eichman have deterred and will continue to deter prosecutors from

bringing flag-destruction prosecutions that would violate the First Amendment. Concomitantly, the

State contends, these cases have caused the average citizen to understand that the United States

Constitution protects the right to burn the United States flag to express an idea, so the average citizen

will not feel constrained by the statute from engaging in such conduct.113 It is no doubt true that the

Supreme Court’s decisions in Johnson and Eichman have deterred prosecutions for flag

desecration114 and that those decisions have raised awareness among members of the general public

that certain disrespectful conduct toward the United States flag is protected by the United States

Constitution. But we are not persuaded that the deterrent effect and popular understanding of

Supreme Court decisions are valid factors in determining whether a statute is unconstitutionally

overbroad.

The State’s argument involves a sort of bootstrapping. In effect, the State is arguing that

113

See Milligan, 479 F. Supp. 2d at 1007 (contending that “[i]t is reasonable to believe that

the average citizen generally understands that burning a flag as part of expressive speech or conduct

is protected by the United States Constitution” and such general knowledge “would be sufficient to

dispel any possible chilling effect”).

114

See Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) (“In this case, Mr. Blaylock

has foresworn any intention to bring criminal charges against indivdiuals who alter the flag for

expressive purposes. His superior, Mr. Yocom, has gone further, categorically announcing that his

office will bring no prosecutions under the statute.”); Lawson v. Hill, 368 F.3d 955, 956-57 (7th Cir.

2004) (“At some point [the prosecutor] learned about the demonstrations and told both the police

chief of Goshen, and the county’s sheriff, not to investigate whether the students had violated the

flag-desecration statute. We do not know when anyone was last prosecuted under the statute. We

know only that [the prosecutor] has never prosecuted anyone under it and is unaware of any

prosecutions in other counties.”).

JOHNSON — 32

certain applications of the flag-destruction statute are so obviously unconstitutional that prosecutors

will steer clear of them, and because of that, the actual unconstitutional applications of the statute

will not be substantial in relation to the statute’s legitimate sweep. The State also suggests that there

will be no chilling effect from these unconstitutional applications because the public understands that

the courts will not enforce them. The State’s argument is somewhat like an argument advanced in

a capital murder appeal a decade ago. The defense argued that the court should find the evidence

to be insufficient to show future dangerousness because the defendant was so obviously dangerous

that the prison authorities would place him in lockdown to prevent him from hurting anyone.115

Although we found that defendant’s argument to be “ingenious,” we rejected it because “it would

stand the capital punishment scheme on its head, giving relief to the most dangerous offenders.”116

Likewise, the State’s argument would seem to stand First Amendment jurisprudence on its head,

upholding a statute on the basis that its unconstitutional applications are so glaringly obvious that

prosecutors will avoid them and speech will not be chilled by them.

Moreover, the Supreme Court has clearly stated that it will not uphold a statute “merely

because the Government promised to use it responsibly.”117 “The First Amendment protects against

the Government; it does not leave us at the mercy of noblesse oblige.”118 And so long as a statute

remains on the books, the threat of “irresponsible” use remains, because a prosecutor or police

officer may be insufficiently instructed on the issue, because the authorities (wrongly) perceive the

115

Masterson v. State, 155 S.W.3d 167, 172-74 (Tex. Crim. App. 2005).

116

Id. at 174.

117

Stevens, 559 U.S. at 481.

118

Id.

JOHNSON — 33

conduct to fall outside constitutional protection, or because of other reasons. The caselaw contains

post-Eichman examples of such occurrences with respect to flag-desecration statutes.119 By

depending on the Supreme Court’s “as-applied” jurisprudence to reduce the overbreadth of a statute,

the State shifts to a significant degree the determination of constitutional questions from the courts

to the prosecutors, the police, and the public. But we should not expect persons in those latter

positions to be the primary interpreters of the First Amendment:

Arguably, people are always “on notice” that constitutionally protected conduct is

exempt from prosecution, and law enforcement officials could always look to the

First Amendment to determine when a law should not be enforced because it would

interfere with constitutionally protected activity . . . . Because First Amendment

119

See Phelps v. Powers, 63 F. Supp. 3d 943, 945-46, 952-57 (S.D. Iowa 2014) (“According

to Petitioners [members of Westboro Baptist Church], Chief Powers told Elizabeth Phelps that the

flag desecration statutes would be enforced against the picketers. As a result of Chief Powers’s

statement, members of the church refrained from putting the flag on the ground or hanging it from

their bodies.” The court found the Iowa flag-desecration statute to be unconstitutionally overbroad

in violation of the First Amendment.); Snider, 752 F.3d at 1154 (In 2009, the defendant was arrested

for flag desecration for shredding an American flag in his front yard and held in jail for

approximately eight hours because both the arresting officer and the prosecutor “were unaware of

the United States Supreme Court decisions in Texas v. Johnson and United States v. Eichman.”

Upon being informed of Johnson by a local reporter, the prosecutor dismissed the case.); Gooding

v. Ketcher, 838 F. Supp. 2d 1231, 1234-35 (N.D. Okla. 2012) (In 2009, a United States flag was used

by the plaintiff as a prop during a band performance, the plaintiff was arrested and imprisoned for

thirteen hours until he posted bond, formal charges were never filed, and the sheriff commented in

support of arrest, “I was shocked and disturbed by this that somebody would think they could get

by with that . . . . People in this part of the United States are very proud of the flag and what it stands

for and the men and women who have lost their lives to protect that flag. It’s not an object to be

stomped on or drug across the floor.”); Milligan, 479 F. Supp. 2d at 997 (Two defendants were

prosecuted in 2006 for flag desecration or disorderly conduct with respect to the flag for flying flag

upside-down in protest. One defendant was found not guilty by a magistrate on the basis that the

statute was unconstitutional as applied. The other defendant’s case was dismissed one day before

trial.); Janssen, 219 Wis. 2d at 367-68, 580 N.W.2d at 262 (In 1996, the defendant was prosecuted

for flag desecration after he defecated on flag belonging to golf course. Trial court dismissed the

prosecution, and the appellate courts affirmed.); Bricker, 542 Pa. at 237-38, 246-47, 666 A.2d at

258-59, 263 (In 1993, the defendant was prosecuted for flag desecration after a police officer

discovered a dirty and wrinkled flag being used in a doorway inside the home. Trial court quashed

the charge, and appellate court affirmed.).

JOHNSON — 34

doctrines are often intricate and/or amorphous, people should not be charged with

notice of First Amendment jurisprudence . . . . Moreover, an attempt to charge people

with notice of First Amendment caselaw would undoubtedly serve to chill free

expression.120

Further, in explaining why it believes appellee’s conduct in this case was not expressive, the

State offers rationales that could readily lend themselves to the harassment of persons engaging in

protected expression.121 The State claims that there was “no element of speech” in appellee’s

conduct because his conduct “was random in nature.” But the act of throwing down a flag in anger

could easily be protected expression.122 The State also contends that appellee’s conduct was non-

expressive because he threw down a flag that belonged to a different store than the one he was angry

with. That conclusion depends on statements made by appellee to the police after they confronted

him about his conduct in relation to the flag. If the expressive nature of a person’s conduct depends

upon what he later says when confronted by the police about it, then individuals who have engaged

120

Long, 931 S.W.2d at 295 (criticizing reliance on language in an affirmative defense that

made it a defense if the actor engaged in activity “in support of constitutionally . . . protected rights”

because such language would require citizens and law-enforcement officials “to be First Amendment

scholars”). See also Janssen, 219 Wis. 2d at 382 n.13, 580 N.W.2d at 268 n.13 (“[A] construction

which by its very language limits a statute’s application to speech and conduct that is not protected

by the First Amendment is both impractical and constitutionally suspect . . . . [I]t simply exchanges

overbreadth for vagueness.”) (quoting in part from Laurence H. Tribe, AMERICAN CONSTITUTIONAL

LAW , § 12-29, at 1031 (2d ed. 1988), internal quotation marks omitted).

121

Although the case is before us on a facial challenge to the statute, “we can look to the

prosecution before us as evidence of the real danger posed by the statute.” Thompson, 442 S.W.3d

at 350 (citing Stevens, 559 U.S. at 480).

122

See Joyce, 454 F.2d at 980 (“When all this is added to the unexplained tearing which

marred, injured, and disfigured the flag, it was reasonable to conclude that Joyce intended thereby

publicly to show his disrespect and scorn for the flag and that he esteemed it to be low and worthless.

That is the normal inference from an act of intentionally tearing an article. It is the conclusion that

reasonable people reach countless times a day in the activities of ordinary life when they see a person

rip something apart, throw part of it to the ground and tear the remainder.”).

JOHNSON — 35

in expressive flag-damaging conduct can nevertheless be subject to arrest and detention pending an

investigation regarding whether the conduct was in fact protected expression.123 The State argues

that the public clearly understands that the Constitution protects the right to damage a flag as a

means of expression, but however clear that public understanding may be, the ruling sought by the

State today would cloud that understanding—potentially re-introducing the very chilling effect that

the State claims earlier decisions have eliminated.

III. CONCLUSION

“The case is made difficult not because the principles of its decision are obscure but because

the flag involved is our own.”124 We conclude that the Texas flag-destruction statute, by its text and

in actual fact, prohibits a substantial amount of activity that is protected by the First Amendment,

judged in relation to its legitimate sweep. Consequently, we hold that the Texas flag-destruction

statute is facially invalid because it is unconstitutionally overbroad in violation of the First

Amendment. We affirm the judgments below.

Delivered: October 7, 2015

Publish

123

The Supreme Court has suggested that its concerns are amplified when First and Fourth

Amendments freedoms intersect. See Maryland v. Macon, 472 U.S. 463, 468 (1985) (“The First

Amendment imposes special constraints on searches for and seizures of presumptively protected

material and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such

circumstances.”).

124

Barnette, 319 U.S. at 641 (regulation requiring school children to salute American flag

and recite pledge of allegiance violates First and Fourteenth Amendments).